This article was originally posted on SCOTUSblog.com on July 9, 2020. 

The first thing we learned this morning with the announcement of the decision in McGirt v. Oklahoma was that Chief Justice John Roberts didn’t manage to be in the majority in every single 5-4 decision this term. Today, Justice Neil Gorsuch wrote for a majority of five (joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), with Roberts writing for the four dissenters and Justice Clarence Thomas appending a brief solo dissent to assert that the court lacked jurisdiction to hear this case at all.

The court held today that land in northeastern Oklahoma reserved for the Creek Nation since the 19th century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to try certain major crimes committed by “[a]ny Indian” in “the Indian country.” The court’s holding means that state courts in Oklahoma had no jurisdiction to convict petitioner Jimcy McGirt, who is an enrolled member of the Seminole Nation of Oklahoma, of three serious sexual offenses that took place on the reservation.

The decision is a stunning reaffirmance of the nation’s obligations to Native Americans. It confirms the existence of the largest tract of reservation land in the country, about 19 million acres encompassing the entire eastern half of Oklahoma. The court took almost two full terms to decide this question. It first heard oral argument in a predecessor case, Sharp v Murphy (in which Gorsuch was recused), in the fall of 2018, before restoring Murphy to the calendar this term and then, instead of hearing re-argument, granting and hearing oral argument in May on the same question in McGirt (in which Gorsuch could participate). (In a one-sentence, unsigned opinion, the court today also disposed of Murphy, ruling in favor of inmate Patrick Murphy “for the reasons stated in” McGirt.) In substance, the court “hold[s] the government to its word,” reaffirming the continuing existence of the reservations that the federal government promised to the Five Civilized Tribes in the 1830s to persuade them to give up their ancestral lands in Georgia and Alabama and walk along the Trail of Tears to the lands at issue.

As Indian law cases go, the dispute in this one is easy to understand: whether the land once granted to the Creek Nation as a reservation retains that status. The majority of five says that it does, because Congress has not adopted any single statute that explicitly terminates that status; the dissenters say that it does not, reasoning that the total body of congressional intrusions in the area, culminating in the development of eastern Oklahoma as a predominantly non-Native American area, adequately illustrates Congress’ intent to disestablish the reservation.

Gorsuch begins by documenting the clarity of the historical record establishing the creation of the Creek reservation: a series of treaties and statutes that, among other things “solemnly guarantied” the land to the tribe, “forever set apart as a home for said Creek Nation,” “no portion [of which] shall ever be embraced or included within … any Territory or State.”

Gorsuch then turns to the question of whether “the Creek Reservation persists today,” recognizing “that Congress has since broken more than a few of its promises to the Tribe,” and that Congress unquestionably has the raw power to disregard those promises and destroy the reservation. On that point, Gorsuch emphasizes that the power to terminate the reservation “belongs to Congress alone,” and that “this Court [will not] lightly infer such a breach.” Introducing a theme that dominates the opinion, he explains that “States have no authority to reduce federal reservations lying within their borders”; giving States that power “would … leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.”

Oklahoma had maintained that a variety of congressional actions over the years demonstrated Congress’ intent to disestablish the reservation. Gorsuch first addresses Oklahoma’s argument that the “allotment” of Indian lands disestablished the reservation, referring to a late-19th-century policy of pressuring tribes to “abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members.” Because allotment statutes commonly permitted Native Americans to sell their parcels to non-Native Americans, those policies in many cases, including this one, led rapidly to external ownership of the great majority of land on the reservation.

For Gorsuch, though, the allotment process sheds no light on the outcome of the case: “For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument.” Rather, “this Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots.” Gorsuch acknowledges that the proponents of allotment hoped that, after the land was parceled out, the reservations eventually would be abolished, but he concludes that “to equate allotment with disestablishment would confuse the first step of a march with arrival at its destination.”

Finding allotment insufficient to show disestablishment, Gorsuch turns next to the many “other ways Congress intruded on the Creek’s promised right to self-governance.” He discusses those at some length, but, as with allotment, his overarching view is that the various “laws represented serious blows to the Creek … [b]ut, just as plainly, … left the Tribe with significant sovereign functions over the lands in question.”

Gorsuch next addresses what he characterizes as Oklahoma’s central argument, the idea that “historical practice and demographics … are enough by themselves to prove disestablishment.” Here Gorsuch most directly parts ways with the dissenters. For Gorsuch and the majority, “the only ‘step’ proper for a court of law” is “to ascertain and follow the original meaning of the law.” Things like “contemporaneous usages, customs, and practices” can have relevance only “if during the course of our work an ambiguous statutory term or phrase emerges.” Responding to the vigorous argument of Roberts that the overall context unmistakably shows the disestablishment of the reservation, Gorsuch reiterates his text-first-and-only train of reasoning: “Oklahoma and the dissent have cited no case in which this Court has found a reservation disestablished without first concluding that a statute required that result. Perhaps they wish this case to be the first.” For Gorsuch, any willingness to go “down th[e] path” of considering “extratextual evidence” would “only serve to allow States and courts to finish work Congress has left undone, usurp the legislative function in the process, and treat Native American claims of statutory right as less valuable than others.”

To illustrate “the perils of substituting stories for statutes,” Gorsuch offers an extended response to Oklahoma’s argument that its “long historical prosecutorial practice of asserting jurisdiction over Indians in state court” helps to prove that the Creek lands have not been part of a reservation since at least the establishment of the state of Oklahoma more than a century ago. For Gorsuch, that evidence only shows that Oklahoma, like many other states, “overstepped its authority in Indian country … [p]erhaps often in good faith, perhaps sometimes not.” Given the common pattern of state violation of Native American enclaves, it makes little sense, Gorsuch reasons, to “rel[y] on state practices to determine the meaning of the [Major Crimes Act]”:

[J]ust imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their title by fraud or otherwise in sufficient volume that no one remembers whose land this once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. … That would be the rule of the strong, not the rule of law.

Gorsuch next considers Oklahoma’s argument that the Creek Tribe never had a reservation, that they fell instead into a distinct status as a “dependent Indian community.” Specifically, Oklahoma argues that because the Creek Tribe bargained for a fee title to their own land (an unusual situation, given that most reservations are on lands owned by the federal government), its land should not be treated as a reservation. Gorsuch ridicules that argument as insisting that the tribe’s rights should gain less protection because it bargained more effectively up front than other tribes. Rejecting the idea that “fee title was nothing more than another trap for the wary,” Gorsuch quickly moves on.

The last section of Gorsuch’s opinion sternly rejects Oklahoma’s argument that the “transform[ative]” effects on the eastern half of the state of a ruling in favor of McGirt call for a different outcome. Gorsuch offers several pages downplaying those adverse effects, pointing out that “the vast majority” of Oklahoma prosecutions have no Native American involvement (less than 15 percent of its citizens identify as Native American), that efforts to overturn past convictions often will be ill-advised or impractical and that the history of cooperative arrangements among state, local and tribal authorities suggests that the decision will not unduly unsettle expectations or “have significant consequences for civil and regulatory law.” “And, of course,” Gorsuch notes, “should agreement prove elusive, Congress remains free to supplement its statutory directions about the lands in question at any time.” At bottom, though, Gorsuch rests the decision on the rule of law, concluding that “dire  warnings are just that, and not a license for us to disregard the law.”

There is a notable symmetry in the articulation of a strong voice in support of Native Americans by the only justice with roots in the western part of the nation. Observers of the court know that it frequently has given short shrift to the promises and obligations that Congress has undertaken for Native Americans, and that a decision so firmly vitalizing the nation’s obligations to Native Americans does not come along every year. It will be interesting to watch in the years to come to see whether Gorsuch continues to stake out an interest in the topic.

Citation:
Ronald Mann, Opinion analysis: Justices toe hard line in affirming reservation status for eastern Oklahoma, SCOTUSblog (Jul. 9, 2020, 7:15 PM), https://www.scotusblog.com/2020/07/opinion-analysis-justices-toe-hard-line-in-affirming-reservation-status-for-eastern-oklahoma/